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Northern Illinois Insurance Agency, Inc. v. Leading Insurance Group Insurance Co., Ltd.

United States District Court, Seventh Circuit

December 9, 2013

Northern Illinois Insurance Agency, Inc., Plaintiff,
v.
Leading Insurance Group Insurance Company, Ltd (US), et al., Defendants.

ORDER

PHILIP G. REINHARD, District Judge.

For the reasons stated below, defendants' motion to dismiss is granted as to Counts IV, IX, and X and denied as to the remainder of the claims. The claims in Counts IV, IX, and X are dismissed without prejudice. Plaintiff, if it wishes to do so, shall file any amended complaint as to these dismissed claims on or before 1/31/2014.

STATEMENT

Plaintiff, Northern Illinois Insurance Agency, Inc., an Illinois corporation with its principal place of business in Illinois, brought this action in state court against defendants Leading Insurance Group Insurance Company, LTD (US) ("LIG"), a corporation organized under the laws of the Republic of Korea with its principal place of business in the Republic of Korea, and Leading Insurance Services, Inc. ("LIS"), a New Jersey corporation with its principal place of business in New Jersey. The complaint is in ten counts. Counts I through VIII are for various contract breaches. Count IX claims a violation of the Illinois Uniform Deceptive Trade Practices Act ("UDTPA") (815 ILCS 510/1 et seq.). Count X claims a violation of the Illinois Consumer Fraud and Deceptive Business Practices Act ("ICFA") (815 ILCS 505/1 et seq.) The amount in controversy exceeds $75, 000. Defendants removed to this court based on diversity of citizenship. 28 U.S.C. ยง 1332(a). Defendants move to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim and pursuant to Fed.R.Civ.P. 8 and 9 for failing to meet the pleading requirements of those rules.

The facts are taken from plaintiff's complaint. Plaintiff is an independent insurance broker. Plaintiff entered several contracts with defendants. These contracts included a wholesale broker agreement and a retail broker agreement. The contracts authorized plaintiff to bind coverage on behalf of LIG up and until such time as defendants adjusted or revoked that authority. On February 1, 2013, defendants purported to terminate these agreements with plaintiff. The purported termination did not meet the contractual (which incorporated the state law) or state law notice requirement for termination. Illinois law requires 180 days written notice prior to the effective date of termination.

After the date of purported termination, defendants began issuing cancellation/nonrenewal notices to insureds under policies bound by plaintiff citing as the sole reason for cancellation the purported termination of the broker agreements. Illinois law bars this as a reason for cancellation or nonrenewal of a policy. After plaintiff advised defendants of this law violation, defendants refused to rescind the cancellations. This damaged plaintiff by causing a loss of business, lost profits and loss of reputation.

Pursuant to authority granted it in the broker agreements, plaintiff bound coverage for several insureds. Defendants did not honor these binds of coverage causing plaintiff loss of business, lost profits and loss of reputation.

As to one insured, Roosevelt Mason, defendants failed to honor the bind of coverage and the insured suffered a fire loss. Defendants eventually issued a policy but included an inappropriate endorsement which resulted in denial of the claim for fire loss. This damaged plaintiff in its business and its reputation.

Defendants have denied plaintiff full access to its records and expirations. Defendants computer system did not permit plaintiff to maintain separately a full set of information on quotes and renewals. Plaintiff was required to maintain its records on defendants' computer system. The renewal rights were owned by plaintiff not defendants pursuant to the contracts and Illinois law. Shortly before the purported termination of the broker agreements, and continuing after, defendants refused to allow plaintiff access to the computer system to access necessary information to service plaintiff's accounts. Defendants have failed to respond to plaintiff's inquiries concerning its existing accounts, failed to respond to claims of insureds, and made false statements about plaintiff to plaintiff's existing and potential insureds and to brokers and others in the industry.

Under the wholesale broker agreement, defendant LIG was to pay plaintiff a commission of 17%. This rate was negotiated between plaintiff's president and LIG's president on or about Juy 17, 2012. Instead, defendant LIG allowed only a 15% commission on "Broker Billing" accounts. As an alternative to "Broker Billing" on some accounts under both the wholesale and retail agreements, defendant LIG directly billed ("Customer Billing") customers and collected the premiums and was to pay plaintiff commissions out of these amounts collected. Defendant LIG has failed to pay or account for all of the commissions due plaintiff on these direct billed accounts.

In addition to the two broker agreements, plaintiff and defendant LIG entered a profit sharing agreement for 2012. Under the terms of the profit sharing agreement, plaintiff was entitled to a monetary reward if it met certain targets. Plaintiff met these targets and requested its reward on January 28, 2013. Defendant LIG responded that all checks would be issued in late February 2013. Defendant LIG has refused to pay any reward to plaintiff.

On February 14, 2013, defendant LIG's counsel advised plaintiff it would not unreasonably withhold approval of binds made by plaintiff. Plaintiff relied on these representations in advising its clients. Despite these representations defendant LIG unreasonably withheld approval of all of the outstanding binds quoted prior to the purported contract terminations. Defendant LIG has made false, misleading and disparaging statements concerning its dealings with plaintiff, including misrepresentations as to whether plaintiff had submitted a notice of loss for a client on a fire loss claim and falsely claiming nonpayment of premiums as a basis for cancelling policies when timely payment had in fact been sent.

Defendants move to dismiss all of plaintiff's claims asserting none of the facts recited above state any actionable claim. To survive a motion to dismiss for failure to state a claim, the complaint must contain allegations that state a claim to relief that is plausible on its face." Lavalais v. Village of Melrose Park, 734 F.3d 629, 632 (7th Cir. 2013) (internal quotation marks and citation omitted). "A plaintiff must plead some facts that suggest a right to relief that is beyond the speculative level. This means that the complaint must contain allegations suggesting (not merely consistent with) an entitlement to relief." Id . (Internal quotation marks and citations omitted).

Count I for wrongful termination of the contracts, Count VII for failure to pay commissions, and Count VIII for failure to pay a reward under the profit sharing agreement all clearly state actionable claims. Defendants seem to acknowledge this in their brief ("this is a straightforward dispute about whether Plaintiff was properly terminated and whether Plaintiff is entitled to further commissions") but go on to claim these counts should be dismissed anyway. Defendants cite a summary judgment case, Manuel Int'l v. M.R. Berlin, Inc. , 525 F.Supp. 90 (N.D. Ill. 1981) (Shadur, J.), contending it somehow requires the complaint to identify customers who were lost as a result of the alleged breach of contract in order to adequately plead damages. But, this is unnecessary to ...


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